Why India needs a victim and witness protection law

A 22-year-old Dalit woman from Lalitpur district in Uttar Pradesh, reported being raped in January 2016. The police were reluctant to act because the man accused was a local leader of a political party with powerful caste affiliations. Finally, after she went to court in March 2016, a judge ordered the police to file a First Information Report (FIR) to begin the investigation. But without proper protection, the woman and her husband had to flee the village and move hundreds of kilometers away after repeated threats and harassment from the accused and others in the village.

“We weren’t able to stay in the village because the accused were ready to kill us and the police did not take any action against them,” she said. “There’s no one for us.”

In 2013, India enacted new and stronger laws to deal with rape and sexual violence against women, leading to greater number of girls and women willing to report such crimes. These were important initiatives by the government to respond to the public dismay over cases of rape and other violent attacks. However, lack of victim and witness protection acts as a significant barrier to obtain justice. It deters victims from cooperating with investigations and testifying in court, and makes it more likely they will turn “hostile” and retract earlier statements, contributing to unwarranted acquittals.

Victims and witnesses of serious crimes are particularly at risk when the perpetrator is powerful, influential, or rich and the victims or witnesses belong to a socially or economically marginalised community. Girls and women who report sexual violence are often even more vulnerable and face extreme pressure or direct threats from the accused, as Human Rights Watch found in its report “Everyone Blames Me”: Barriers to Justice and Support Services for Sexual Assault Survivors in India.

The Supreme Court has repeatedly observed that India needs a witness protection scheme. In 2006, the Law Commission of India issued detailed recommendations for “administrative or legislative action” for witness protection. Yet to date India has not enacted a law or developed a nationwide scheme for witness protection outside the courtrooms.

How Delhi follows up on Witness Protection?In the capital, Delhi, however, the authorities took the important initiative to introduce a Witness Protection Scheme in 2015. The Delhi State Legal Services Authority (DSLSA) passes protection orders in each case after evaluating the threat. The Commissioner of Police is responsible for the overall implementation of the witness protection orders. Protection measures can include armed police protection, regular patrolling around witnesses’ house, installing closed-circuit television cameras, and relocation.

Once the DSLSA receives an application for protection, it seeks a threat analysis report from a senior police officer of the district or unit investigating the case. DSLSA is required to interact with the witness or others linked to the prosecution to determine protection needs, and make a final order within seven working days of the application being filed and pass interim protection orders, if needed.

The Delhi State Legal Services Authority has received 45 cases since 2015, including five cases of rape, four cases of child abuse, and one case of acid attack. “In most cases, the victim or witness have the most to fear until they depose in court,” said Geetanjali Goel, special secretary at the DSLSA. “Usually after that, witnesses don’t want protection. Our job is to provide protection until the witness wants it.”

While the Delhi scheme can provide a good model for the rest of the country, there are still challenges. The scheme provides for a witness protection fund, but so far, no such fund is functional. Lack of a fund can contribute to delays in witness protection orders, especially when it requires infrastructure such as installation of CCTV cameras.

The police were also supposed to set up a Witness Protection Cell, dedicated to implementing the scheme and submitting monthly reports to the DSLSA. In the absence of such a cell, DSLSA currently seeks its own follow-up reports in each case. While the scheme is new, currently there are no mechanisms in place to evaluate its working or data to determine whether protection in a case was effective.

Anatomy of threat and intimidationAside from the scheme in Delhi, courts across the country have at times ordered protection of victims and witnesses in sensitive cases. In 2013, in Muzaffarnagar in Uttar Pradesh state, seven women reported being gang raped during the communal violence in September that killed over 60 people and displaced thousands. The women petitioned the court for security and in January 2014, the Supreme Court directed the state to provide protection. Two police constables—an armed male and a female–were provided to each woman around-the-clock. However, their lawyer said, the protection wasn’t sufficient.

“In cases where the vulnerability is so high, just giving protection by armed constables does not solve anything. It does not take into account the anatomy of the threat and intimidation,” said advocate Vrinda Grover, who represented the victims in Supreme Court.

As is common in cases of violence against women, besides threat of physical attack, the intimidation can be far more insidious, communicated to the victim and her family through elders, powerful or influential men, and thugs in the community.

Grover said a fast-track court should have recorded their statements and promptly examined them as witnesses. “The delays proved to be fatal to the case,” she said. Out of seven women who reported being gang raped, one died and at least three turned hostile. One woman is still willing to testify, but Grover along with civil society groups had to relocate her and her family out of the state for her safety. Meanwhile, they are waiting for the Allahabad High Court’s decision on their application to transfer the case out of Muzaffarnagar district.

Barriers to an effective witness protection scheme

A key barrier to an effective witness protection scheme in India is also the lack of independence and accountability of the police. In the Lalitpur case, police took eight months to file a First Information Report after a court order. Forced to live hundreds of miles away from her village, unable to follow up on her case, the 22-year-old says she has lost hope for justice.

If she and others like her receive protection and support after they file complaints for rape, sexual assault, and other violent crimes, they would have a greater chance to obtain justice. For this to happen, the government will need to enact an effective witness and victim protection law and ensure it is adequately funded.